Tag: SSI

The Supreme Court on Friday issued the decision in Becerra v. Empire Health Foundation (see pdf file at link). Unfortunately, in a 5-4 decision, the Court overruled the Ninth Circuit’s decision and decided instead for the government, holding that the language “entitled to benefits under Part A” does not exclusively refer to a patient who has a right to payment. This means that the Supreme Court has sided with HHS’s decision to include non-covered Medicare Part A days (such as exhausted benefit days and Medicare Secondary Payer days) in the SSI Ratio of the Medicare DSH payment calculation. 

 

In a prior decision, the Ninth Circuit found for providers in May 2020, holding that HHS was treating the words “entitled” and “eligible” synonymously, in contradiction of statute. In a surprising and somewhat puzzling turn, the Supreme Court has disagreed with the Ninth Circuit’s analysis, settling the issue in favor of HHS.

 

Toyon has been representing many of your interests in appealing the agency’s implementation of the 2005 Rule relating to non-covered Part A days, as providers had consistently held that non-covered Part A days should be excluded from the SSI Fraction and included only in the numerator of the Medicaid Fraction. We are working with our attorneys to determine any potential next steps or strategies that may be available to our clients, in light of this disappointing court decision. We will contact you in the coming weeks as necessary if there is any further opportunity to pursue this issue. 

 

In the meantime, please contact Karen S. Kim at (925) 685-9312 or at karen.kim@toyonassociates.com if you have any questions. 

In late February, CMS issued the Federal Fiscal Year (FFY) 2020 acute care SSI ratios. The FFY 2020 SSI ratios are used for the computation of provider FFY 2020 empirical DSH payments (cost reporting period beginning between 10/1/2019 – 9/30/2020). CMS has not yet released the FFY 2020 Low-Income Patient (LIP) SSI ratios for Inpatient Rehabilitation Facilities.  We expect CMS to issue LIP SSI ratios soon.

 

 

Similar to FFY 2019,  the FFY 2020 SSI ratios include only “covered” SSI days (as opposed to “eligible” SSI days) for providers in the Ninth Circuit per Empire Health Foundation v. Azar. (“the Empire Case”). The Ninth Circuit decision impacts the SSI ratios for providers in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The availability of FFY 2020 SSI ratios allow providers, including those in the Ninth Circuit, to preliminarily settle cost reports related to FFY 2020. The Empire Case is currently pending before the Supreme Court. 

 

All other DSH hospitals outside of the Ninth Circuit have FFY 2020 SSI ratios consistent with existing CMS regulations (using “eligible” SSI days, as opposed to “covered” SSI days). Although CMS states the FFY 2020 SSI ratios are preliminary, Toyon recommends DSH providers appeal any FFY 2020 cost report whereby an NPR is issued prior to the Supreme Court decision on the Empire Case.  

 

Please feel free to contact Dylan Chinea at 925.685.9312, ext. 3121, dylan.chinea@toyonassociates.com with any questions. 

The Empire Court found HHS’s implementation of the 2005 Rule, wherein HHS arbitrarily included non-covered Medicare Part A days in its calculation of the SSI Fraction, to directly conflict with the Ninth Circuit’s longstanding interpretation of the meaning of “entitled to [Medicare].” The Ninth Circuit in 1996 interpreted the meaning of the words “entitled” and “eligible” in another appeal. (Legacy Emmanuel Hospital and Health Center v. Shalala, 97 F. 3d 1261, 1265-66 (9^th Cir. 1996)). According to the Legacy Emmanuel Court, “entitled” means the patient has an “absolute right . . . to payment,” whereas the word “eligible” means the patient “simply meets the Medicaid statutory criteria.” Because the Ninth Circuit’s interpretation of the word “entitled” is unambiguous, HHS’s decision to treat the words “entitled” and “eligible” as having the same meaning directly contravenes the Ninth Circuit’s interpretation of the statute and “cannot stand,” according to the Empire court.

 

While the Ninth Circuit decision is a great win for providers who have this issue under appeal, the decision is not yet final. HHS has 45 days from the date of the decision to request en banc review or appeal to the Supreme Court, and there is no reason to believe HHS would decline to fight this appeal further. However, in anticipation of this positive ruling, Toyon has engaged the same attorney who prevailed in the Empire Health Foundation case and is actively working to move all its pending Medicare Part A appeals into court so as to position providers in the best situation to benefit from this positive ruling.

Providers will need to wait to see how HHS responds to the Ninth Circuit’s ruling but be prepared to move their appeals forward. Toyon will be contacting affected hospitals in the coming weeks as necessary, as more details become available on this issue.